This is a developing matter and this note was last updated on 18 March 2020 at 12:00 (Malta time).
Recent orders issued by Malta's Superintendent of Public Health have directly impacted remedies available to bidders and interested parties under Maltese public procurement law.
a. the closure of the "any tribunal established by law", including the "registry" of any such tribunal; and
b. the suspension of "any legal and judicial times and of any other time limits including peremptory periods applicable to proceedings".
Closure of the Public Contracts Review Board
The Public Contracts Review Board—which is the judicial body established by law to hear public procurement related challenges—falls within the scope of these orders and it has been forcibly closed.
The Board on 16 March 2020 issued a communication on its website stating the following:
"IN ACCORDANCE WITH LEGAL NOTICE L.N. 61 OF 2020 AND L.N. 65 OF 2020, PLEASE BE ADVISED THAT THIS BOARD CANNOT ACCEPT OBJECTIONS OR PRE-CONTRACTUAL APPEALS UNIT FURTHER NOTICE".
Therefore, and as a matter of practice, it was no longer physically possible to file any applications for remedies allowed under Maltese public procurement law with the same Board.
Since that communication, the Board has now clarified the legal position on 18 March 2020 and now has exercised its power at law to open nonetheless in view that "public procurement is in the public interest". This follows a circular issued by the Department of Contracts on 17 March 2020 (which we wrote about here).
The Board appears to have exercised its power to open its registry nonetheless; a power which is expressly permitted by the above-mentioned orders issued by the Superintendent of Public Health.
It is therefore now possible to file any applications for remedies allowed under Maltese public procurement law with the same Board by way of e-mail. This also means that: (i) competitive tender procedures may continue to close; and (ii) public contracts may be concluded in the coming days, if no remedies were filed with the Board in connection with them.
Suspension of Limitation Periods to File Remedies
The suspension of "legal and judicial times" should also suspend any right of action under Maltese public procurement law, including: (i) the application for a remedy prior to closing of a tender (the so-called application for a pre-contractual remedy); and (ii) the letter of objection against a rejection decision or a recommendation of award of a public contract. However, it would appear that the position taken by the Public Contracts Review Board and the Department of Contracts is that the opening of the registry of the Board will lift the suspension on the limitation period to exercise these remedies.
The lifting-off of this suspension on the limitation period to exercise public procurement remedies was designed to address concerns, raised over the past few days, on the validity of: (i) competitive tender procedures which close; and (ii) public contracts which are concluded; during this time.
There remains a pressing issue which is yet to be addressed. The 20 day limitation period to appeal any decision delivered by the Public Contracts Review Board before the Court of Appeal remains suspended as a result of the wide scope of the above-mentioned orders. This effectively means that any decision delivered by the Board is not final and definitive for the duration of this suspension and that any competitive tender procedure which is the subject-matter of the decision will remain frozen. This will impact directly any decisions delivered by the Public Contracts Review Board after 24 February 2020 and until these orders by the Superintendent of Public Health are repealed.
In our view, this makes the case for a specific and express carve-out of public procurement remedies from the wide effect of the orders issued by the Superintendent of Public Health.
The situation will be monitored closely and will issue updates as the legal landscape develops.
This note is not designed to provide legal or other advice.
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